State of Missouri v. U.S. Army Corps of Engineers

Feb 8: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-1149. The United States Army Corps of Engineers (Corps) manages the Missouri River Mainstem Reservoir System (the System) under the Flood Control Act of 1944. The System consists primarily of a series of dams and reservoirs on the upper River. The Corps’ governing operational document is the Missouri River Mainstem Reservoir Master Water Control Manual (the Master Manual), which has been revised five times since its initial adoption in 1960. The Corps also publishes specific operational details in an Annual Operating Plan.

In recent years, persistent drought conditions have challenged the Corps’ ability to perform its dominant Flood Control Act functions of flood control and maintaining downstream navigation while also continuing to benefit secondary uses such as irrigation, recreation, fish, and wildlife. Forced to make difficult choices, the Corps has faced repeated lawsuits by competing beneficial users of the River as controlled by the System. In South Dakota v. Ubbelhode, the Eighth Circuit reversed the grant of preliminary injunctions preventing the Corps from releasing drought-depleted waters from reservoir lakes in South Dakota and North Dakota in order to maintain downstream navigation.

Meanwhile, environmental groups sued, and the Judicial Panel on Multi-District Litigation consolidated all actions in the District of Minnesota. In March 2004, the Corps issued a revised Master Manual (the 2004 Master Manual) containing provisions prompted by a Biological Opinion issued by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act. Competing users challenged the actions of both agencies on numerous grounds. In In re Operation of the Missouri River System Litigation, (2006) (hereinafter Mo. River), the Eighth Circuit affirmed the district court’s grant of summary judgment in favor of both agencies.

The Appeals Court explains, "In this action, a sequel to Mo. River, the State of Missouri claims that the Corps violated the National Environmental Policy Act (NEPA) by implementing March 2006 revisions to the 2004 Master Manual without preparing a supplemental environmental impact statement (SEIS). The district court granted the Corps’ motion for summary judgment. Missouri appeals. We conclude that the Corps’ actions were not arbitrary and capricious and therefore affirm."

In its final analysis the Appeals Court makes an important observation saying, "Finally, Missouri argues that the Corps violated NEPA when it failed to follow the EA with either an EIS or a FONSI [finding of no significant impact}. This is an unduly restricted view of the agency’s options for complying with NEPA’s procedural mandates. The Corps’ regulations provide that an EA is used 'for determining whether to prepare an EIS or a FONSI,' and '[a] FONSI shall be prepared for a proposed action . . . for which an EIS will not be prepared.' 33 C.F.R. §§ 230.10(a), 230.11. However, these provisions must be read in conjunction with CEQ’s implementing regulations, see 33 C.F.R. § 230.1, which sensibly provide that '[a]gencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.' 40 C.F.R. § 1501.3(b). Neither the Corps’ nor CEQ’s regulations prescribe a specific process to determine whether to prepare an SEIS. Here, the Corps prepared an EA, not to help it decide whether to prepare an EIS, but rather to determine whether the change in agency action required an SEIS. As this case illustrates, it is reasonable to expect that the Corps will sometimes determine that a FONSI is not appropriate because the action being taken has a significant impact on the environment, but an SEIS is not required because the impact was sufficiently analyzed in an earlier FEIS. This approach is neither a misuse of the EA procedure nor a violation of NEPA."

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